1. Embezzlement or embezzlement, that is, theft of someone else's property entrusted to the guilty person, is punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a period of up to two hundred and forty hours, or correctional labor for a term of up to six months, or restriction of liberty for a term of up to two years, or forced labor for a term of up to two years, or imprisonment for the same term.
2. The same acts committed by a group of persons by prior conspiracy, as well as causing significant damage to a citizen, are punishable by a fine in the amount of up to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term up to three hundred sixty hours, or correctional labor for a term of up to one year, or forced labor for a term of up to five years with or without restriction of freedom for a term of up to one year, or imprisonment for a term of up to five years with restriction of freedom for a term of up to one year or without it.
3. The same acts committed by a person using his official position, as well as on a large scale, are punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to three years, or deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or forced labor for a term of up to five years with or without restriction of freedom for a term of up to one and a half years, or imprisonment for a term of up to six years with a fine of up to ten thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one month or without it and with or without restriction of freedom for a period of up to one and a half years.
4. Acts provided for in parts one, two or three of this article, committed by an organized group or on an especially large scale, are punishable by imprisonment for a term of up to ten years with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the person convicted of a period of up to three years or without it and with restriction of freedom for a period of up to two years or without it.
Characteristic
One of the forms of theft of property, according to norm 160 of the Criminal Code of the Russian Federation, is appropriation. It should be understood as the illegal gratuitous circulation of material assets by the guilty for their own benefit. It is committed for selfish purposes and against the will of the legal owner. The appropriation will end from the moment when lawful possession becomes unlawful. At the same time, the subject to whom the property was entrusted began to perform actions aimed at turning it to his own benefit. For example, the crime is completed at the moment when a person, through forgery, hides the fact that he has entrusted material assets, or does not fulfill the obligation to deposit the transferred funds into the owner’s bank account. Embezzlement is the illegal use of money held by the perpetrator for personal purposes. It also involves other illegal consumption of entrusted material assets. Embezzlement can also be committed through the transfer of property to third parties. It is considered completed at the moment of illegal consumption or alienation. If the culprit has wasted part of the property (money, for example), and misappropriated the other (fuel and lubricants, in particular), then the acts do not form a set of crimes.
The crime provided for in Art. 160 of the Criminal Code of the Russian Federation refers to crimes against property.
In 2012 A number of such criminal cases were identified, completed and tried in court. Criminal liability under Art. 160 of the Criminal Code of the Russian Federation is punishable for misappropriation or embezzlement, that is, the theft of someone else’s property entrusted to the culprit. Property is considered entrusted if the owner or user gives the person to whom it is transferred certain legal powers - to use the property within certain limits, extracting its useful properties, to store it, to implement delivery services. As a rule, entrustment presupposes the proper execution of these powers - the conclusion of an agreement for use, storage, and delivery. Appropriation consists of the gratuitous, mercenary, unlawful use by a person of the property entrusted to him for his own benefit against the will of the owner. Since the property is already in the lawful possession of such a person, the circulation of the property consists of its wrongful retention. The crime is considered completed when the legal possession of the entrusted property has become illegal, the person begins to take actions aimed at turning the said property into his favor (for example, by forgery he hides the presence of entrusted property, does not fulfill the obligation to place the funds entrusted to him into the bank account of the owner) . Embezzlement is the illegal actions of a person who, for selfish purposes, has spent the property entrusted to him against the will of the owner by consuming this property, spending it or transferring it to other persons. In contrast to the appropriation and retention of someone else's property, embezzlement can be characterized as the withholding of this property, i.e. its expenditure - sale, donation, loan. The crime is completed from the moment of actual expenditure or alienation of the property entrusted to the perpetrator. The subjective side is characterized by guilt in the form of direct intent and selfish purpose. A special subject of a crime is a person to whom someone else’s property was entrusted by a legal entity or individual on a legal basis for a specific purpose or for a specific activity. Misappropriation and embezzlement are qualified as committed by a group of persons by prior conspiracy if two or more persons who have the characteristics of a special entity were directly involved in them (for example, the head of the organization in charge of the stolen property and an employee who is financially responsible for this property under the contract ), which in advance, i.e. before the crime began, they agreed to commit it jointly (Part 2 of Article 160 of the Criminal Code of the Russian Federation). In addition, the third part of Article 160 of the Criminal Code of the Russian Federation provides for criminal liability for the same act committed by a person using his official position. According to the first part of Art. 160 of the Criminal Code of the Russian Federation provides for punishment in the form of a fine in the amount of up to one hundred twenty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one year, or compulsory labor for a period of up to two hundred and forty hours, or correctional labor for a period of up to six months, or restriction of liberty for a term of up to two years, or forced labor for a term of up to two years, or imprisonment for the same term. The second and third parts provide for the same types of punishment, but with imprisonment for up to five and six years, respectively, and in addition, the third part provides for such a type of punishment as deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years. Thus, in 2012 the court convicted: Citizen P. under Art. 160 part 1 of the Criminal Code of the Russian Federation, which, being a financially responsible person, embezzled funds entrusted to her in the amount of 1800 rubles. and causing material damage to the injured organization. By a court decision, the criminal case against the perpetrator was terminated due to the reconciliation of the parties, at the request of the injured organization, which compensated for the material damage and made amends for the damage. The court ruling entered into legal force. Citizen Sh. under Art. 160 part 3 of the Criminal Code of the Russian Federation, who, as the head of an enterprise, committed the theft of someone else’s property by embezzlement using his official position, namely funds in the amount of 10,000 rubles. At the trial, the defendant's guilt was fully confirmed. By a court verdict, the court sentenced him to deprivation of the right to hold leadership positions in state bodies, local government bodies, state and municipal institutions and enterprises related to organizational, administrative and economic functions for a period of one year, taking into account the mitigating factors available in the case. guilt of circumstances, full admission of guilt, repentance for the deed, active assistance in solving the crime, no previous convictions, has an illness, compensated for material damage. The verdict came into force. Citizen X. under Art. 160 part 3 of the Criminal Code of the Russian Federation, who, while working in a managerial position in an enterprise, committed the theft of someone else’s property by appropriating it using her official position, namely funds, in the amount of 11,572 rubles. At the trial, the defendant’s guilt was fully confirmed. The court sentenced her to a similar punishment, taking into account the presence of mitigating circumstances. The verdict came into force.
Comments on the article
Article 160 provides for several types of appropriation of someone else's property - misappropriation and embezzlement. These are two completely different ways of committing a crime, each of which has its own characteristics.
Like any other act, misappropriation or embezzlement has its own elements, as well as a number of aggravating circumstances for which stricter liability is provided. Both appropriation and embezzlement are, first and foremost, theft. Therefore, it is necessary to understand the interpretation of this definition. Theft is understood as the taking and appropriation of other people's things for oneself, and the extraction of material and other selfish benefits from them.
You can only steal property that belongs by right of ownership to another person. The lawful seizure of things and other valuables is not theft. This happens when bailiffs and executors take property to pay off debt obligations.
The property must be entrusted to the criminal. This means transferring things if there are legal grounds for a certain type of purpose.
Characteristics of assignment
Appropriation refers to actions aimed at obtaining property for one’s own purposes.
As a rule, things are voluntarily transferred to such a citizen for various reasons, for example, due to his work activity. Such an act has a specific purpose behind it - self-interest and thirst for profit. It is also necessary that there is no will of the owner to transfer the property in favor of another citizen. When talking about a crime, it is always necessary to keep in mind when it is considered completed. In the case of appropriation, this happens at the moment when the thing is turned in favor of the criminal. For example, when an obligation arose to transfer property to an entrusted person, which was not done without the necessary warning.
Characteristics of embezzlement
Embezzlement differs from embezzlement in many ways. First of all, this lies in the moment of completion of the criminal act. Thus, embezzlement is considered to have been committed from the moment when the money or property was actually consumed and put into circulation. Of course, all these actions must take place in the absence of the legal will of the owner.
Definition of concepts
To understand what kind of sanction Article 160 of the Criminal Code of the Russian Federation implies for the appropriation or embezzlement of someone else’s property, it is necessary to first understand what each of the definitions is. The Criminal Code of the Russian Federation considers the concept of embezzlement as an illegal action aimed at spending entrusted property or transferring it without the permission of the owner to third parties for a fee. The appropriation of someone else's property is described in the Criminal Code of the Russian Federation as taking entrusted property into one's own ownership or retaining it without the owner's permission.
In the case of misappropriation, at the moment the theft ends, the property of others is in the possession of the criminal, but in the case of embezzlement, it is not. The crime is considered completed if the property has been confiscated and the attacker has the opportunity to dispose of and use it for his own purposes.
To understand the difference between misappropriation and embezzlement of someone else's property, you can consider a real-life example. Citizen Sidorov is engaged in cargo transportation. He was hired to transport construction materials. If along the way Sidorov stops and sells several bags of sand or cement, his actions will be classified as embezzlement. If he brings building materials to his garage, unloads them and sells several bags the next day, then this is misappropriation.
It should be noted that crimes related to embezzlement are much less common in judicial practice than embezzlement. The fact is that criminals need time to hide the stolen property, find a buyer, draw up the appropriate documents and, of course, avert suspicion. Embezzlement requires lightning-fast decisions and actions, which is not always possible for criminals.
Many legal scholars define embezzlement as the next stage of appropriation of property, but embezzlement does not always occur after appropriation, so the hypothesis has not been confirmed or included in criminal law.
Some uninformed citizens confuse theft of funds through embezzlement or misappropriation and ordinary theft. The main sign of a crime under Art. 160 of the Criminal Code of the Russian Federation is the fact of entrusted property. That is, the attacker receives property with certain rights directly from the owner. In the case of theft, the thief has no rights, either direct or indirect, to the property. He gets the opportunity to use the property only after the crime is completed.
There are distinctive features of embezzlement and embezzlement with fraud. In order for property to be taken by fraud, there must be a breach of trust. In the case of entrusting property, there are legal relations between the owner and the subject of the violation; they must be documented. Accordingly, in the case of fraud, the relationship between the perpetrator and the victim is based on trust, but in the case of embezzlement, it is not.
Qualification
According to the version of the criminal code in force in 2022, the qualifying feature in the case of misappropriation or embezzlement is the infliction of significant property damage on the victim. Its minimum amount is 2500 rubles.
To establish the presence of a qualifying characteristic, the court must determine the real value of the embezzled or wasted property, as well as the property status of the victim, which is measured in:
- availability of sources of income;
- amount of income;
- frequency of income receipt;
- presence of dependents;
- total income of all family members.
The court listens to the opinion of the victim himself about the significance of the damage caused to him, but also takes into account the case materials, which serve as confirmation of the value of the stolen property and demonstrate the property status of the victim.
Several thefts of property, the total value of which is more than 250,000 rubles, are classified as grand theft. When misappropriation and embezzlement of property with a total value of 1,000,000 rubles or more is recorded as theft on an especially large scale. In both cases, all facts of theft must be committed using a single method under circumstances that indicate the presence of selfish intent on the part of the perpetrator.
Actions of accomplices
If a group of people took part in the misappropriation or embezzlement, the court must establish the roles of each of them.
Incitement is proven when a person induces another person to commit criminal acts through bribery, threat, persuasion or other methods.
Complicity consists of facilitating the implementation of illegal actions with the help of instructions, advice, providing any data, tools or means for committing a crime, or removing obstacles. An accomplice is also recognized as a citizen who promised in advance to hide the identity of the perpetrator and traces of illegal actions or intended to purchase and sell stolen property.
Arbitrariness
Separately, the law specifies the concept of arbitrariness. This is the seizure and (or) conversion in one’s own favor or in favor of other persons of someone else’s property by a citizen who sought to realize his actual or perceived right to this property. An example of arbitrariness is the appropriation by a citizen of property entrusted to him in order to pay the debts of the property owner.
From a legal point of view, arbitrariness is not theft. In this case, the culprit is held accountable under Article 330 of the Criminal Code of the Russian Federation.
Object and subject of the crime
In characterizing the composition of a criminal act, a special place is occupied by the object and the objective side.
The object is understood as those social legal relations that are implemented within the framework of the circulation and redistribution of things. The objective side is the conditions under which the act was committed, as well as the cause-and-effect relationship between the action and the consequence.
In this case, the general rules for determining the subject composition are applied - a citizen who has reached the age of sixteen. This does not apply to all parts of Article 160 of the Criminal Code. Thus, in accordance with the third part, the subject can only be an official. It is understood as a citizen who is entrusted with the functions of material or administrative support for the activities of the organization, and who carries out his activities on the basis of a legally concluded employment contract.
An act must be committed only if there is direct intent, when a citizen really understands that there is criminal liability for this, but continues his illegal behavior. This is called direct intent to commit a crime.
Aggravating circumstances
In Art. 160 part 3 of the Criminal Code of the Russian Federation defines a special qualifying element - committing an act using official status or on a large scale. For these crimes the following is assigned:
- Fine of 100-500 thousand rubles. or representing the income of the perpetrator for 1-3 years.
- Up to 5 years of forced labor. In addition to the sanction, the judge may impose a restriction of freedom of up to 1.5 years.
- Up to 6 years in prison. Additionally, a fine of 10 thousand or the equivalent of a citizen’s income for 1 month and up to 1.5 years of restriction of freedom may be imposed.
- Deprivation of the right to conduct activities or hold positions established by a judge for up to 5 years.
Part 4 of norm 160 of the Criminal Code of the Russian Federation provides for sanctions for acts committed in amounts recognized as particularly large, or by an organized group. Those found guilty face up to 10 years in prison with a fine of up to 1 million rubles. or constituting the income of the perpetrators for a period of up to 3 years and with restriction of freedom for up to 2 years.
Exemption from liability under Article 160 (misappropriation or embezzlement)
If you have committed a crime for the first time and you are charged with Part 1 or Part 2 of Art. 160 of the Criminal Code of the Russian Federation, then the investigator, inquiry officer or court can release you from liability:
- In connection with active repentance: if you voluntarily confessed, helped solve a crime, compensated for damage or otherwise made amends for harm. In this case, the investigator, inquiry officer or court may release you from criminal liability, recognizing that as a result of active repentance, expressed in these actions, you have ceased to be dangerous to society.
- In connection with the application with the victim: if you have reconciled with the victim and made amends for the harm caused to him. Termination is allowed both at the stage of investigation and inquiry, and at the stage of judicial consideration of the case.
- With the imposition of a court fine. Exemption from criminal liability with the imposition of a court fine was introduced into legislation in 2016 and is allowed only on the basis of a decision made by the court.
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If you have been charged under Part 3 or Part 4 of Art. 160 of the Criminal Code of the Russian Federation, then the listed circumstances cannot serve as a basis for releasing you from criminal liability, as they apply only to crimes of minor and medium gravity, and crimes provided for in parts 3 and 4 of Art. 160 of the Criminal Code of the Russian Federation, relate to serious crimes.
You can be released from criminal liability regardless of what part of Art. 160 of the Criminal Code of the Russian Federation, you have been charged if the statute of limitations for criminal prosecution has expired, which are:
- under Part 1 of Art. 160 of the Criminal Code of the Russian Federation – 2 years from the date of commission of the crime;
- according to part 2 of Art. 160 of the Criminal Code of the Russian Federation – 6 years;
- under Part 3 and Part 4 of Art. 160 of the Criminal Code of the Russian Federation – 10 years.
The difference between the elements of a criminal offense and other articles with similar actions
It is possible to take possession of someone else’s property unlawfully under different circumstances. Therefore, the Criminal Code of the Russian Federation qualifies misappropriation and embezzlement according to the type of act committed and the options for further actions carried out with this property.
The correct qualification of an offense committed by a guilty person, which fits one of the norms of criminal law, is determined on the basis of an analysis of the act and consideration of its differences from other actions committed with property that does not belong to the guilty person, which include theft, fraud and other criminal actions with someone else's property. property.
The main criteria delimiting this type of offense are as follows:
- Differences between criminal offenses regulated by Part 1 of Art. 160 of the Criminal Code of the Russian Federation. Despite the regulation of two different crimes by one article of the Code, the types and amounts of liability for these offenses differ in connection with the integrity of the appropriated property. The fact of appropriation (and use) of property by someone other than the owner implies that the property is safe and sound, but is being used by another person. This means that property can be returned to its rightful owner, either voluntarily or involuntarily. An option for appropriation may be the use of state property for one’s own interests. Also, misappropriation may include not transferring a treasure found by a person to law enforcement agencies, instead of receiving part of what was found as a reward for its transfer. In contrast to embezzlement, embezzlement is considered from the position that a third party is already using the property with impunity, and the return of the property to the rightful owner will most likely be accompanied by the obligation to compensate both the owner (if the property was damaged in some way) and the third party from whom it the property was seized. An option for embezzlement may be the sale of confiscated counterfeit alcohol by the person responsible for its storage or disposal. Waste also includes the use of maternity capital for other purposes.
- The difference between a crime under Article 158 of the Code (theft) and a criminal offense under Article 160 (embezzlement or embezzlement). The main difference between theft and crimes regulated by Article 160 of the Code is the attitude of the offender to the object. Theft is the theft of property that at the time of the theft was not in his power on the basis of an agreement, power of attorney or other official document on the basis of which the thing was entrusted to the criminal. The item may have been previously owned by the person, but during the theft it had nothing to do with the criminal.
- Difference between embezzlement or misappropriation of property and fraud (Article 159). The differences between these types of offenses lie in the fact that in fraud, the illegal actions committed are primarily associated with forgery or improper execution of contracts, documents and other papers. In the case of fraud, the victim transfers property to the criminal (or signs the necessary papers) voluntarily. The fact of deception is revealed only after some time. This could be, for example, the payment by the tenant of a security deposit for unrented housing or the illegal transfer of a state deposit in a bank or other credit organization to another person, etc. All of these compositions are generally similar, most often differing in one feature.
Definition of basic concepts of the case
Article 160 of the Criminal Code of the Russian Federation considers embezzlement or embezzlement as two key concepts that belong to the category of theft of property entrusted to a suspect or accused.
The Criminal Code of the Russian Federation defines the appropriation of someone else's property as a punishable act committed for selfish reasons. The essence of this unlawful action is the use for personal purposes or for personal benefit of property belonging to another person.
These may include the following:
- money;
- real estate (house, apartment, other premises, etc.);
- car and other types of vehicles;
- other types of property or things.
The peculiarity of further actions with these types of property and things is that the criminal does not try to get rid of the embezzled property or illegally transfer it to a third party through sale, donation or other actions.
Embezzlement is defined by the Criminal Code of the Russian Federation as an action of an illegal nature committed for personal gain. The essence of the action is the waste of someone else's property or material assets that were entrusted to the guilty person on the basis of official documents (lease agreement, employment contract, official authority, etc.).
The difference from appropriation is that the property entrusted to the guilty person is transferred to other persons (not necessarily fraudulently) for consumption or further expenditure, regardless of the will of the property owner.
Service status
In part three, punishment is provided for citizens who committed an act using their official position. In this composition the subject is special. An entity that uses its official status to commit embezzlement or misappropriation is recognized as meeting the criteria defined in paragraph 1 of the note to norm 285 of the Code. To liability under part three of Art. 160 municipal or civil servants may also be involved. They may not be officials. Punishment is also imposed on other entities that meet the requirements formulated in paragraph 1 of the note to Article 201 of the Criminal Code. The actions of instigators, organizers, accomplices of a crime committed knowingly for them by a citizen using his official status are characterized according to the relevant part of Art. 33. Thus, the executor is a special subject holding a certain position or having specific powers. Part 3 of the norm in question also establishes punishment for an act committed on a large scale. According to the provisions of the note to Art. 158 of the Code, the value of the property is more than 250,000 rubles.
